International Human Rights International Human Rights International Humanitarian Law, and Environmental Security Can the International Criminal court Bridge the Gaps? Mark a drumbo 工 工 NTRODUCTION2 工工 OVERVIEW OF THE ENVIRONMENTAL CONSEQUENCES OF ARMED CONFLICT 4 THE ICC AND ENVIRONMENTAL PROTECTION: THE LANGUAGE OF THE ROME STATUTE 7 The Physical Act: Widespread, Long-term and Severe Damage Exculpatory Effects of Military Advantage 16 The Mental Element: Strict Intentionality 19 工s工 T WORTH GREENING THE ICC?21 A Environmental Concerns lost in the shuffle 24 Low Environmental Expertise of the Judges and Prosecutors Inappropriate Sanctions 25 D Limited Scope of Judicial Interpretation 27 No Room for Negligence or Recklessness 28 PUNITIVE SANCTIoN, PROACTIVE PROTECTION, OR ENVIRONMENTAL JUSTICE? CONCLUSION 40 L. Introduction Human rights law has evolved considerably over the past half-century. Much of this evolution has occurred at the international level. Evolution can, of course, consist of growth and expansion, or decline and regression. For the most part, the recent international evolution of human rights law has tended towards growth and expansion Growth can involve the creation of new mechanisms to enforce basic civil rights by holding accountable those who international lawyers. This activity has most immediately culminated in the adoption of the Rome Statute of the tivit these rights. In recent years, the creation of mechanisms to promote accountability has become a focal point of activi International Criminal Court(hereinafter"Rome Statute)l in July, 1998. The Rome Statute innovates on both the procedural and substantive fronts. Along with creating an enforcement mechanism in the form of the International detailed list of what can prospectively be sanctioned as the"most serious crimes of concern to the internation roviding a Criminal Court(hereinafter"ICC), the Rome Statute also refines prior customary and conventional rules by providing a community as a whole. 2 In this regard, the Rome Statute creates important linkages between human rights, international humanitarian law, and international criminal law. This gives rise to what one scholar has labeled the"humanization of international humanitarian law 3 Although there has been considerable parallelism between international human rights and international humanitarian law, this has, for the most part, occurred within the nexus of classic human rights such as the right to life, the right to freedom from persecution, and the right to bodily integrity. The evolution and growth of social and political rights, and their penetration into the world of international humanitarian law, has been much slower. A traditionally socio-political right whose exploration shall constitute the focus of this Article is the right to live in a healthy and productive environment hich some have called"environmental security. 4 For the most part, the linkage between international humanitarian law and environmental security is weak and may in fact reflect a somewhat troubling disjunction between international ://www.nsulaw.nova.edu/student/organizations/ilsajournal/6-2/drumbl%206-2.htm(1of27)[4/16/200110:12:21Pm
International Human Rights, International Humanitarian Law, and Environmental Security: Can the International Criminal Court Bridge the Gaps? Mark A. Drumbl* I. INTRODUCTION 2 II. OVERVIEW OF THE ENVIRONMENTAL CONSEQUENCES OF ARMED CONFLICT 4 III. THE ICC AND ENVIRONMENTAL PROTECTION: THE LANGUAGE OF THE ROME STATUTE 7 A. The Physical Act: Widespread, Long-term and Severe Damage 12 B. Exculpatory Effects of Military Advantage 16 C. The Mental Element: Strict Intentionality 19 IV. IS IT WORTH GREENING THE ICC? 21 A. Environmental Concerns Lost in the Shuffle 24 B. Low Environmental Expertise of the Judges and Prosecutors 25 C. Inappropriate Sanctions 25 D. Limited Scope of Judicial Interpretation 27 E. No Room for Negligence or Recklessness 28 V. PUNITIVE SANCTION, PROACTIVE PROTECTION, OR ENVIRONMENTAL JUSTICE? 30 VI. CONCLUSION 40 I. Introduction Human rights law has evolved considerably over the past half-century. Much of this evolution has occurred at the international level. Evolution can, of course, consist of growth and expansion, or decline and regression. For the most part, the recent international evolution of human rights law has tended towards growth and expansion. Growth can involve the creation of new mechanisms to enforce basic civil rights by holding accountable those who violate these rights. In recent years, the creation of mechanisms to promote accountability has become a focal point of activity for international lawyers. This activity has most immediately culminated in the adoption of the Rome Statute of the International Criminal Court (hereinafter “Rome Statute”)1 in July, 1998. The Rome Statute innovates on both the procedural and substantive fronts. Along with creating an enforcement mechanism in the form of the International Criminal Court (hereinafter “ICC”), the Rome Statute also refines prior customary and conventional rules by providing a detailed list of what can prospectively be sanctioned as the “most serious crimes of concern to the international community as a whole.”2 In this regard, the Rome Statute creates important linkages between human rights, international humanitarian law, and international criminal law. This gives rise to what one scholar has labeled the “humanization” of international humanitarian law.3 Although there has been considerable parallelism between international human rights and international humanitarian law, this has, for the most part, occurred within the nexus of classic human rights such as the right to life, the right to freedom from persecution, and the right to bodily integrity. The evolution and growth of social and political rights, and their penetration into the world of international humanitarian law, has been much slower. A traditionally socio-political right whose exploration shall constitute the focus of this Article is the right to live in a healthy and productive environment, which some have called “environmental security.”4 For the most part, the linkage between international humanitarian law and environmental security is weak and may in fact reflect a somewhat troubling disjunction between international International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (1 of 27) [4/16/2001 10:12:21 PM]
International Human Rights environmental law and humanitarian concerns. although international humanitarian law may well be humanized, it is not showing signs of being "environmentalized gap between international humanitarian law and environmental security should trouble international lawyers. Just as context for the infliction of wanton and extensive destruction to the environment This destruction creates profound ilar led conflict often creates a context in which the most serious human rights abuses occur. so too does it create a sir environmental insecurity. Part II of this Article explores the insecurities caused by the environmental consequences of armed conflict. Although the international community has shown considerable concern for the humanitarian consequences of war, 5 it has been significantly more hesitant in accounting for war's environmental consequences. It is for this reason that a very fruitful exploration of the progress that has been made and that still needs to be made in terms of harmonizing international humanitarian law with environmental protection can emerge from a study of how the international community monitors the environmental consequences of war. Part Ill examines the successes and failures of the international legal order in controlling these consequences and directs its focus on the ICC's jurisdiction to prosecute environmental war crimes. Part IV argues that the ICC may not be particularly well-suited to sanction environmentally destructive behavior. This raises the more penetrating question whether punitive criminal approaches pursued in isolation of other policy devices can ever promote environmental security. Part V is proscriptive, sketching ways in which the promotion of environmental security can be made more effective. Part V posits that the effective promotion of environmental security requires a multifaceted approach, which combines criminal prosecution, preventative measures litigation in the United States, involves more proactive use of international anti-discrimination conventions to gllardce and specially tailored remedies. An additional element of this multifaceted approach, inspired by environmental ju against the infliction of environmental insecurity on already disempowered groups. In the end, this encourages environmental security to become more closely integrated with both the protection of human rights and international humanitarian law l. Overview of the Environmental Consequences of Armed Conflict Modification or desecration of the natural environment has often been used as a strategic mechanism to safeguard state sovereignty. Over two millennia ago, Roman soldiers salted the soil of Carthage. Much more recently, Agent Orange was used to defoliate the Vietnamese jungle. In fact, it is estimated that, from 1962 to 1971, the United States sprayed twelve million gallons of defoliant over more than ten percent of what was then South vietnam. 7 United States estimates reveal that fourteen of the areas forests were destroyed. 8 Other estimates place the figure at nearly one-third. 9 Regardless of the exact numbers, Abroad stretches of the landscape are still bare of trees. @10 Civilians and soldiers who had been exposed to defoliants claim to have passed the ill-effects through their family lines. In fact, there are tens of thousands of hysically or mentally disabled children in Vietnam whose disabilities can be linked to the spraying of Agent Orange which occurred before they were born or even conceived. 11 During the 1990-1991 Gulf War, vast quantities of oil were dumped into the Persian Gulf to contaminate Kuwaits water supply. 12 Kuwaiti oil wells were also deliberately ignited by Iraqi troops. 13 Remedying the losses and damages suffered as a direct result of Iraq's unlawful invasion and occupation of Kuwait has prompted the creation of the United Nations Compensation Commission(hereinafter"UNCC" )as a subsidiary organ of the United Nations. 14 The UNCC is a unique initiative(part court of law, part arbitral tribunal) which adopts mass tort litigation approaches to settle claims and pay compensation, including for damage to the Kuwaiti environment and public health. Iraq, whose liability is presumed, is to pay reparations out of its frozen international assets as well as from a portion of its future oil export earnings. Thus far, 2.6 million claims have been filed. 15 The asserted value of these claims is $250 billion. 16 Reports of significant ecological destruction are also emerging from the Federal Republic of Yugoslavia(hereinafter FRY ). NATO aerial bombardment of the FRY under Operation Allied Force has resulted in the destruction of oil refining installations as well as storage facilities for other industrial products. Much of this destruction arose from the fertilizer and refinery complex in Pancevo resulted in the discharge of oil, gasoline, and dichloride(a powerful rcinogen)into the Danube river. 18 The bombardment of the Pancevo facility also caused the emission of toxi gases. 12 The result, according to one Western observer, is an"ecological disaster", with the pollution"spread[ingl downstream to Romania and bulgaria and then into the black Sea. 20 Scientists are also very concerned that extensive ://www.nsulaw.nova.edu/student/organizations/ilsajournal/6-2/drumbl%206-2.htm(2of27)[4/16/200110:12:22Pm
environmental law and humanitarian concerns. Although international humanitarian law may well be “humanized,” it is not showing signs of being “environmentalized.” The gap between international humanitarian law and environmental security should trouble international lawyers. Just as armed conflict often creates a context in which the most serious human rights abuses occur, so too, does it create a similar context for the infliction of wanton and extensive destruction to the environment. This destruction creates profound environmental insecurity. Part II of this Article explores the insecurities caused by the environmental consequences of armed conflict. Although the international community has shown considerable concern for the humanitarian consequences of war,5 it has been significantly more hesitant in accounting for war’s environmental consequences. It is for this reason that a very fruitful exploration of the progress that has been made and that still needs to be made in terms of harmonizing international humanitarian law with environmental protection can emerge from a study of how the international community monitors the environmental consequences of war. Part III examines the successes and failures of the international legal order in controlling these consequences and directs its focus on the ICC’s jurisdiction to prosecute environmental war crimes. Part IV argues that the ICC may not be particularly well-suited to sanction environmentally destructive behavior. This raises the more penetrating question whether punitive criminal approaches pursued in isolation of other policy devices can ever promote environmental security. Part V is proscriptive, sketching ways in which the promotion of environmental security can be made more effective. Part V posits that the effective promotion of environmental security requires a multifaceted approach, which combines criminal prosecution, preventative measures, and specially tailored remedies. An additional element of this multifaceted approach, inspired by environmental justice litigation in the United States, involves more proactive use of international anti-discrimination conventions to guard against the infliction of environmental insecurity on already disempowered groups. In the end, this encourages environmental security to become more closely integrated with both the protection of human rights and international humanitarian law. II. Overview of the Environmental Consequences of Armed Conflict Modification or desecration of the natural environment has often been used as a strategic mechanism to safeguard state sovereignty. Over two millennia ago, Roman soldiers salted the soil of Carthage. Much more recently, Agent Orange was used to defoliate the Vietnamese jungle. In fact, it is estimated that, from 1962 to 1971, the United States sprayed twelve million gallons of defoliant over more than ten percent of what was then South Vietnam.7 United States estimates reveal that fourteen of the area’s forests were destroyed.8 Other estimates place the figure at nearly one-third.9 Regardless of the exact numbers, Abroad stretches of the landscape are still bare of trees.@10 Civilians and soldiers who had been exposed to defoliants claim to have passed the ill-effects through their family lines. In fact, there are tens of thousands of physically or mentally disabled children in Vietnam whose disabilities can be linked to the spraying of Agent Orange which occurred before they were born or even conceived.11 During the 1990-1991 Gulf War, vast quantities of oil were dumped into the Persian Gulf to contaminate Kuwait’s water supply.12 Kuwaiti oil wells were also deliberately ignited by Iraqi troops.13 Remedying the losses and damages suffered as a direct result of Iraq’s unlawful invasion and occupation of Kuwait has prompted the creation of the United Nations Compensation Commission (hereinafter “UNCC”) as a subsidiary organ of the United Nations.14 The UNCC is a unique initiative (part court of law, part arbitral tribunal) which adopts mass tort litigation approaches to settle claims and pay compensation, including for damage to the Kuwaiti environment and public health. Iraq, whose liability is presumed, is to pay reparations out of its frozen international assets as well as from a portion of its future oil export earnings. Thus far, 2.6 million claims have been filed.15 The asserted value of these claims is $250 billion.16 Reports of significant ecological destruction are also emerging from the Federal Republic of Yugoslavia (hereinafter “FRY”). NATO aerial bombardment of the FRY under Operation Allied Force has resulted in the destruction of oil refining installations as well as storage facilities for other industrial products. Much of this destruction arose from the indiscriminate effects of bombing from very high altitude levels.17 In particular, the destruction of a petrochemical, fertilizer and refinery complex in Pancevo resulted in the discharge of oil, gasoline, and dichloride (a powerful carcinogen) into the Danube river.18 The bombardment of the Pancevo facility also caused the emission of toxic gases.19 The result, according to one Western observer, is an “ecological disaster”, with the pollution “spread[ing] downstream to Romania and Bulgaria and then into the Black Sea.”20 Scientists are also very concerned that extensive International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (2 of 27) [4/16/2001 10:12:22 PM]
International Human Rights flooding may result from ice which may form on the Danube and then become lodged behind three bridges in Novi Sad which were bombed during Operation Allied Force21 The areas most at risk include low-lying portions of Serbia, as well as Croatia and parts of Hungary. 22 In short, " If]rom antiquity to the present, examples of environmental destruction in war abound. 23 But it is not only actual war which creates environmental insecurity. The environment also faces severe threats as nations prepare to go to war(mobilization) and as nations turn back from the threat of war(decommissioning and disarmament ). 24 On this latter point, Russian attempts to decommission its nuclear submarines in the Arctic Ocean are being carried out with insufficient financial and human resources and seriously threaten that particularly fragile marine environment. 25 Testing of weapon specifically nuclear and chemical weapons -also has particularly noxious effects on the environment. These activities collateral to actual armed conflict therefore require regulation. Nonetheless, for the most part, the environmental consequences of such activities remain unsupervised and unmonitored ll. The Icc and Environmental Protection The Language of the rome statute It is only very recently that the international community has made inroads into contemplating the prosecution of those who engage in unacceptable use of the environment during wartime. In this regard the language of the rome Statute is important. For the first time, environmental war crimes are independently sanctioned and an apparatus is provided for the punishment of those who commit such crimes. Although there was some scattered mention of environmental war crimes at the Nuremberg Trials, 26 over the past five decades humanitarian abuses have been treated separately from environmental desecration. This disconnect is revealed in the Statute of the International Criminal Tribunal for Former Yugoslavia27 and the Statute of the International Criminal Tribunal for Rwanda. 28 Neither Tribunal is directly empowered to prosecute those who propagate environmental insecurity through the commission of environmental war crimes. The International Criminal Tribunal for the Former Yugoslavia has some jurisdiction over war crimes which bear an incidental relationship to the security of the natural environment. 29 The International Criminal Tribunal for Rwanda essentially lacks jurisdiction over even incidental violations of environmental security. 30 Under the language of the Rome Statute, however, intentional infliction of harm to the environment may constitute a war crime. 31 More specifically, Article 8(2)(b)(iv) prohibits [emphasis added Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. 32 The negotiation history of Article &(2)(b)(iv)merits a brief review. The draft of the rome Statute which served as the basis for the final negotiations listed three other options along with the language which was eventually adopted in Article 8(2)(b)(iv). 33 The three rejected options are 1. Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which not justified by military necessit 2. Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term, and severe damage to the natural environment //ww.nsulaw nova edu/student/organizations/IL SAjournal/6-2/Drumbl %206-2 htm( 3 of 27)[4/16/2001 10: 12: 22 PM
flooding may result from ice which may form on the Danube and then become lodged behind three bridges in Novi Sad which were bombed during Operation Allied Force.21 The areas most at risk include low-lying portions of Serbia, as well as Croatia and parts of Hungary.22 In short, “[f]rom antiquity to the present, examples of environmental destruction in war abound.”23 But it is not only actual war which creates environmental insecurity. The environment also faces severe threats as nations prepare to go to war (mobilization) and as nations turn back from the threat of war (decommissioning and disarmament).24 On this latter point, Russian attempts to decommission its nuclear submarines in the Arctic Ocean are being carried out with insufficient financial and human resources and seriously threaten that particularly fragile marine environment.25 Testing of weapons - specifically nuclear and chemical weapons - also has particularly noxious effects on the environment. These activities collateral to actual armed conflict therefore require regulation. Nonetheless, for the most part, the environmental consequences of such activities remain unsupervised and unmonitored. III. The ICC and Environmental Protection: The Language of the Rome Statute It is only very recently that the international community has made inroads into contemplating the prosecution of those who engage in unacceptable use of the environment during wartime. In this regard, the language of the Rome Statute is important. For the first time, environmental war crimes are independently sanctioned and an apparatus is provided for the punishment of those who commit such crimes. Although there was some scattered mention of environmental war crimes at the Nuremberg Trials,26 over the past five decades humanitarian abuses have been treated separately from environmental desecration. This disconnect is revealed in the Statute of the International Criminal Tribunal for the Former Yugoslavia27 and the Statute of the International Criminal Tribunal for Rwanda.28 Neither Tribunal is directly empowered to prosecute those who propagate environmental insecurity through the commission of environmental war crimes. The International Criminal Tribunal for the Former Yugoslavia has some jurisdiction over war crimes which bear an incidental relationship to the security of the natural environment.29 The International Criminal Tribunal for Rwanda essentially lacks jurisdiction over even incidental violations of environmental security.30 Under the language of the Rome Statute, however, intentional infliction of harm to the environment may constitute a war crime.31 More specifically, Article 8(2)(b)(iv) prohibits [emphasis added]: Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.32 The negotiation history of Article 8(2)(b)(iv) merits a brief review. The draft of the Rome Statute which served as the basis for the final negotiations listed three other options along with the language which was eventually adopted in Article 8(2)(b)(iv).33 The three rejected options are: 1. Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which is not justified by military necessity. (Or) 2. Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term, and severe damage to the natural environment. International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (3 of 27) [4/16/2001 10:12:22 PM]
International Human Rights 3. No paragraph [in other words, no prohibition on intentionally inflicting widespread, long-term and severe damage to the natural environment] In the end, the provision which was adopted was a compromise and, from an environmental perspective, occupies a middle ground. However, it shares with the first option the important limitation that environmental integrity is secondary to the military advancement of national security interests. There are other important limitations. The jurisdiction of the ICC is restricted to"war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes. 34 The question consequently arises whether the "in particular "language will allow isolated incidents to fall within the purview of the Rome Statute. A more important limitation, however, is the fact that prohibiting harm to the natural environment is explicitly mentioned only once in the entire Rome Statute. 35 This provision may therefore become peripheral given the broad array of other crimes to which the ICC's energies will be directed. As a result, the effect of this provision may well be more apparent than real. Also, the environmental war crimes provision of the rome statute only applies to inter-state armed conflicts. Environmental desecration during internecine conflicts is consequently left unaddressed. 36 This is a troubling gap. 37 Also troubling is the fact that the ICC can only capture environmental crimes committed by military forces actively engaged in hostilities. There is therefore no jurisdiction to sanction the environmental insecurity created by armed forces in the testing of weapons or in the mobilization of forces Nor is there jurisdiction to supervise any disarmament process. 38 Article 8(2 )(b (iv)also triggers more specific interpretive concerns. By way of overview, there are three principal components to the language of Article &(2)(b)(iv): (1)the actual physical act- or actus reus- which consists of launching an attack which causes"widespread, long-term and severe damage"to the natural environment;(2)a second material element, namely that the damage must be"clearly excessive in relation to the concrete and direct overall military dvantage anticipated"; and (3)even if both material elements are found, the mental element-or mens rea - must be demonstrated, thereby entailing proof that the attack was launched intentionally and in the knowledge it will cause widespread, long-term, and severe damage" to the natural environment A. The Physical Act: Widespread, Long-term and Severe Damage A successful prosecution under the Rome Statute will, first and foremost, have to show that the accused launched an attack39 which caused"widespread, long-term, and severe damage to the natural environment. " Of great importance is that all three elements must conjunctively be proven. The language of"widespread, long-term and severe" has woven its way into the handful of other international humanitarian conventions which address the use of the environment in times of war, for example the 1977 United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques(hereinafter"ENMOD Convention),40 and the 1977 Additional Protocol I to the 1949 Geneva Convention(Protocol I). 41 However, by providing that all three elements must be conjunctively shown to exist, the language of the Rome Statute regresses from the wording of the ENMOD Convention which bases fault disjunctively on proof of only one of these three characteristics What exactly do"widespread, long-term, and"severe" mean? The Rome Statute is silent on this point. The International Law Commission(hereinafter" ILC )has concluded that widespread, long-term and severe"describes the extent or intensity of the damage, its persistence in time, and the size of the geographical area affected by the damage. "42 However, the International Committee of the Red Cross(hereinafter"ICRC )recognizes that the more specific question"as to what constitutes widespread, long-term, and severe damage .. to the environment is open to interpretation. ( @43 In this regard, some interpretive guidance can be provided by the work of the Geneva Conference of the Committee on Disarmament Understanding(hereinafter"CCD Understanding")regarding the application of these itself define these terms. The CCD Understanding provides as follows.ary since the enmod Convention does not terms under the enmod convention 44 This additional work was necess ://www.nsulaw.nova.edu/student/organizations/ilsajournal/6-2/drumbl%206-2.htm(4of27)[4/16/200110:12:22Pm
(Or) 3. No paragraph [in other words, no prohibition on intentionally inflicting widespread, long-term and severe damage to the natural environment]. In the end, the provision which was adopted was a compromise and, from an environmental perspective, occupies a middle ground. However, it shares with the first option the important limitation that environmental integrity is secondary to the military advancement of national security interests. There are other important limitations. The jurisdiction of the ICC is restricted to “war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes.”34 The question consequently arises whether the “in particular” language will allow isolated incidents to fall within the purview of the Rome Statute. A more important limitation, however, is the fact that prohibiting harm to the natural environment is explicitly mentioned only once in the entire Rome Statute.35 This provision may therefore become peripheral given the broad array of other crimes to which the ICC’s energies will be directed. As a result, the effect of this provision may well be more apparent than real. Also, the environmental war crimes provision of the Rome Statute only applies to inter-state armed conflicts. Environmental desecration during internecine conflicts is consequently left unaddressed.36 This is a troubling gap.37 Also troubling is the fact that the ICC can only capture environmental crimes committed by military forces actively engaged in hostilities. There is therefore no jurisdiction to sanction the environmental insecurity created by armed forces in the testing of weapons or in the mobilization of forces. Nor is there jurisdiction to supervise any disarmament process.38 Article 8(2)(b)(iv) also triggers more specific interpretive concerns. By way of overview, there are three principal components to the language of Article 8(2)(b)(iv): (1) the actual physical act - or actus reus - which consists of launching an attack which causes “widespread, long-term and severe damage” to the natural environment; (2) a second material element, namely that the damage must be “clearly excessive” in relation to the “concrete and direct overall military advantage anticipated”; and (3) even if both material elements are found, the mental element - or mens rea - must be demonstrated, thereby entailing proof that the attack was launched intentionally and in the knowledge it will cause “widespread, long-term, and severe damage” to the natural environment. A. The Physical Act: Widespread, Long-term and Severe Damage A successful prosecution under the Rome Statute will, first and foremost, have to show that the accused launched an attack39 which caused “widespread, long-term, and severe damage to the natural environment.” Of great importance is that all three elements must conjunctively be proven. The language of “widespread, long-term and severe” has woven its way into the handful of other international humanitarian conventions which address the use of the environment in times of war, for example the 1977 United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (hereinafter “ENMOD Convention”),40 and the 1977 Additional Protocol I to the 1949 Geneva Convention (Protocol I).41 However, by providing that all three elements must be conjunctively shown to exist, the language of the Rome Statute regresses from the wording of the ENMOD Convention which bases fault disjunctively on proof of only one of these three characteristics. What exactly do “widespread,” “long-term,” and “severe” mean? The Rome Statute is silent on this point. The International Law Commission (hereinafter “ILC”) has concluded that “widespread, long-term and severe” describes the “extent or intensity of the damage, its persistence in time, and the size of the geographical area affected by the damage.”42 However, the International Committee of the Red Cross (hereinafter “ICRC”) recognizes that the more specific question “as to what constitutes ‘widespread, long-term, and severe’ damage ... to the environment is open to interpretation.@43 In this regard, some interpretive guidance can be provided by the work of the Geneva Conference of the Committee on Disarmament Understanding (hereinafter “CCD Understanding”) regarding the application of these terms under the ENMOD Convention.44 This additional work was necessary since the ENMOD Convention does not itself define these terms. The CCD Understanding provides as follows: International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (4 of 27) [4/16/2001 10:12:22 PM]
International Human Rights Widespread"encompassing an area on the scale of several hundred square kilometers Long-term"lasting for a period of months, or approximately a season; Severe"involving serious or significant disruption or harm to human life, natural and economic resources or other assets to the ENMOd Convention and is not intended to prejudice the interpretation of similar terms if used in another s limit Regrettably, the interpretive value of the CCD Understanding is curtailed by the fact that it stipulates that its use is limited international agreement. 45 As the ENMOD Convention deals with"extraordinary manipulations of the natural environment for military purposes, such as creating floods, it is unclear what weight, if any, it would be given by the [CC]. 46 As it turns out, greater interpretive guidance may be obtained from commentaries on Protocol I, especially since its language is, like the Rome Statute's, conjunctive in nature. From an environmental perspective, the prohibitions in Protocol I are more circumscribed than those of ENMOD. For example, "long-term"has been interpreted by the ICrC as meaning lasting for" decades rather than months. 47 The"widespread""and"long-term" principles attempt to ascribe temporal and geographic limitations to environmental harm which, for the most part, does not know such boundaries. As the planet constitutes one single ecosystem, environmental degradation of one part of the earth ultimately affects the entire planet. 48 The"severe "requirement could esources na en ve and this notwithstanding its biodiversity or species-importance. The anthropocentric limitation of"severe"damage to that which affects human life and human consumption of natural resources underscores a more general shortcoming with much of the existing framework of environmental protection during wartime - namely that this protection is not geared to protecting the environment per se, but, rather, humanitys need to make use of it. More troubling is that state practice in some of the signatories to the Rome Statute ascribes the anthropocentric limitation to the totality of the material element of Article 8(2 )(b (iv ) For example, the German Military Manual states that: "Widespread,, "long-term,, andsevere damage to the natural environment is a major interference with human life or natural resources. 49 An additional phrase that requires definition is"natural environment. In its report detailing the work of its 43rd Session the ilc offered a broad definition of "natural environment. 50 This definition focused both on the human environment as well as on the natural environment per se. 51 Having such a broad definition is necessary for Article 8(2)(b)(iv) to fully encompass environmental security as opposed to only covering the protection of human environments(e.g. cities, dwellings, private property) from destruction. The ilC definition of the"natural environment is as follows ds "natural environment" should be taken broadly to cover the environment of the human race and where the human race develops, as well as areas ration of which is of fundamental importance in protecting the environment. These words therefore cover the seas, the atmosphere, climate, forests and ant cover, fauna, flora and other biological elements. 52 It will be important to develop a memorandum of understanding under the rome Statute in which the scope of"natural environment, " widespread, "long-term, "and"severe"is spelled out. The ongoing Preparatory Commission sessions provide an appropriate forum for such discussions. In fact, the Preparatory Commission intends to"ensure the formulation of generally acceptable elements of crimes on Article 8, as part of a complete set of elements of crimes for all crimes, laid down in the [Rome] Statute. 53 Unfortunately, thus far specific discussion of the environmental war crime provision has been very limited. 54 Nonetheless, it is essential to the viability of Article 8(2)(b)(iv) that the definition of //ww.nsulaw nova edu/student/organizations/IL SAjournal/6-2/Drumbl %206-2 htm (5 of 27)[4/16/2001 10: 12: 22 PM
1. “Widespread” encompassing an area on the scale of several hundred square kilometers; 2. “Long-term” lasting for a period of months, or approximately a season; 3. “Severe” involving serious or significant disruption or harm to human life, natural and economic resources or other assets. Regrettably, the interpretive value of the CCD Understanding is curtailed by the fact that it stipulates that its use is limited to the ENMOD Convention and is not intended to prejudice the interpretation of similar terms if used in another international agreement.45 As the ENMOD Convention deals with “extraordinary manipulations of the natural environment for military purposes, such as creating floods, it is unclear what weight, if any, it would be given by the [ICC].”46 As it turns out, greater interpretive guidance may be obtained from commentaries on Protocol I, especially since its language is, like the Rome Statute’s, conjunctive in nature. From an environmental perspective, the prohibitions in Protocol I are more circumscribed than those of ENMOD. For example, “long-term” has been interpreted by the ICRC as meaning lasting for “decades rather than months.”47 The “widespread” and “long-term” principles attempt to ascribe temporal and geographic limitations to environmental harm which, for the most part, does not know such boundaries. As the planet constitutes one single ecosystem, environmental degradation of one part of the earth ultimately affects the entire planet.48 The “severe” requirement could mean that damage to an isolated section of the global commons whose natural resources have not yet been valued by global financial markets could escape punishment; and this notwithstanding its biodiversity or species-importance. The anthropocentric limitation of “severe” damage to that which affects human life and human consumption of natural resources underscores a more general shortcoming with much of the existing framework of environmental protection during wartime - namely that this protection is not geared to protecting the environment per se, but, rather, humanity’s need to make use of it. More troubling is that state practice in some of the signatories to the Rome Statute ascribes the anthropocentric limitation to the totality of the material element of Article 8(2)(b)(iv). For example, the German Military Manual states that: “’Widespread’, ‘long-term’, and ‘severe’ damage to the natural environment is a major interference with human life or natural resources.”49 An additional phrase that requires definition is “natural environment.” In its report detailing the work of its 43rd Session, the ILC offered a broad definition of “natural environment.”50 This definition focused both on the human environment as well as on the natural environment per se.51 Having such a broad definition is necessary for Article 8(2)(b)(iv) to fully encompass environmental security as opposed to only covering the protection of human environments (e.g. cities, dwellings, private property) from destruction. The ILC definition of the “natural environment” is as follows: The words “natural environment” should be taken broadly to cover the environment of the human race and where the human race develops, as well as areas the preservation of which is of fundamental importance in protecting the environment. These words therefore cover the seas, the atmosphere, climate, forests and other plant cover, fauna, flora and other biological elements.52 It will be important to develop a memorandum of understanding under the Rome Statute in which the scope of “natural environment,” “widespread,” “long-term,” and “severe” is spelled out. The ongoing Preparatory Commission sessions provide an appropriate forum for such discussions. In fact, the Preparatory Commission intends to “ensure the formulation of generally acceptable elements of crimes on Article 8, as part of a complete set of elements of crimes for all crimes, laid down in the [Rome] Statute.”53 Unfortunately, thus far specific discussion of the environmental war crime provision has been very limited.54 Nonetheless, it is essential to the viability of Article 8(2)(b)(iv) that the definition of International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (5 of 27) [4/16/2001 10:12:22 PM]